VANCHEESWARA IYER @ RAJA, ANANTHAVISWANATHAN, GEETHAKUMARI v. P.V. NARAYANASWAMY, M. SANKARANARAYANAN SASTHRI @ M.S. SASTHRI, KANNAN S. IYER, SUBRAMANIA RAJESH, THRIKKARIYOOR BRAHMANA SAMOOHAM TRUST

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 1921 OF 2020** **CMA 25/2020 OF SUB COURT, MUVATTUPUZHA** ## **PETITIONER/S:** 1 VANCHEESWARA IYER @ RAJA AGED 54 YEARS S/O. LATE SIVASUBRAMANYA IYER, VENGOLA MADOM, GRAMAM TEMPLE ROAD, NELLIKUZHI, THRIKKARIYOOR, KOTHAMANGALAM, ERNAKULAM,PIN-686692. 2 ANANTHAVISWANATHAN, AGED 60 YEARS S/O. LATE SIVASWAMY IYER, MALICKAL MADOM, SAMOOHAM ROAD, , NELLIKUZHI, THRIKKARIYOOR, KOTHAMANGALAM, ERNAKULAM,PIN-686692. 3 GEETHAKUMARI, AGED 45 YEARS W/O.VANCHEESWARA IYER @ RAJA, VENGOLA MADOM, GRAMAM TEMPLE ROAD, NELLIKUZHI, THRIKKARIYOOR, KOTHAMANGALAM, ERNAKULAM,PIN-686692. BY ADVS. SRI.ALEXANDER JOSEPH SRI.M.V.SABU SMT.AKHILASREE BHASKARAN ## **RESPONDENT/S:** 1 P.V.NARAYANASWAMY AGED 85 YEARS S/O. LATE VENKITESWAR IYER, PUTHEN MADOM, SAMOOHAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN-686692. 2 M.SANKARANARAYANAN SASTHRI @ M.S.SASTHRI, AGED 83 YEARS, S/O. LATE SIVARAMAKRISHNAN IYER, MALIKKAL MADOM JAYASREE GARDEN, GRAMAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN686692. 3 KANNAN S. IYER, AGED 62 YEARS O.P.(C) Nos.1921 & 1923 of 2020 -2- S/O. LATE SUBRAMANIA IYER, KARAMAL MADOM, THANKALAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN-686692. 4 SUBRAMANIA RAJESH, AGED 47 YEARS S/O.SUBRAMANIA IYER, 5/393, NJALAMADOM, GRAMAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN-686692. 5 THRIKKARIYOOR BRAHMANA SAMOOHAM TRUST, REGISTERED AS DEED NO.279/2019 OF SRO KOTHAMANGALAM, THRIKKARIYOOR P.O., THRIKKARIYOOR KARA AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN-686692, PRESENTLY FUNCTIONING FROM 5/393, NJALAMADOM, GRAMAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN-686692, REPRESENTED BY ITS PRESIDENT AND JOINT SECRETARY. BY ADVS. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SEI.M.VARGHESE VARGHESE SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE SRI.S.DEEPAK SRI.ANTONY THARIAN SHRI.ARJUN S. SEBASTIAN K.J THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28.09.2021, ALONG WITH OP(C).1923/2020, THE COURT ON 21.12.2021 DELIVERED THE FOLLOWING: O.P.(C) Nos.1921 & 1923 of 2020 -3- ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **TUESDAY, THE 21[ST] DAY OF DECEMBER 2021 / 30TH AGRAHAYANA,** ## **1943** ## **OP(C) NO. 1923 OF 2020** ## **CMA 26/2020 OF SUB COURT, MUVATTUPUZHA** ## **PETITIONER/S:** 1 VANCHEESWARA IYER @ RAJA AGED 54 YEARS S/O. LATE SIVASUBRAMANYA IYER, VENGOLA MADOM, GRAMAM TEMPLE ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM, PIN-686 692 2 ANANTHAVISWANATHAN, AGED 60 YEARS, S/O. LATE SIVASWAMY IYER, MALICKAL MADOM SAMOOHAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM, THRIKKARIYOOR VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM,PIN686692. 3 GEETHAKUMARI, AGED 45 YEARS W/O. VANCHEESWARA IYER @ RAJA, VENGOLA MADOM, GRAMAM TEMPLE ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM, PIN-686 692 BY ADVS. SRI.ALEXANDER JOSEPH SRI.M.V.SABU ## **RESPONDENT/S:** 1 P.V.NARAYANASWAMY S/O. LATE VENKITESWAR IYER, AGED 85 YEARS, PUTHEN MADOM, SAMOOHAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, O.P.(C) Nos.1921 & 1923 of 2020 -4- KOTHAMANGALAM TALUK, ERNAKULAM ,PIN-686 692 2 M. SANKARANARAYANAN SASTHRI @ M.S. SASTHRI. S/O. LATE SIVARAMAKRISHNAN IYER, AGED 83 YEARS, MALIKKAL MADOM, JAYASREE GARDEN, GRAMAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM, PIN686 692 3 KANNAN S. IYER, S/O.LATE SUBRAMANIA IYER, AGED 62 YEARS, KARAMAL MADOM, THANKALAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM , PIN-686 692 4 SUBRAMANIA RAJESH, S/O. SUBRAMANIA IYER, AGED 47 YEARS, 5/393 NJALAMADOM, GRAMAM ROAD, NELLIKUZHI PANCHAYATH, THRIKKARIYOOR DESOM AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM, PIN-686 692 5 THRIKKARIYOOR BRAHMANA SAMOOHAM TRUST, REGISTERED AS DEED NO. 279/2019 OF SRO KOTHAMANGALAM, THRIKKARIYOOR P.O, THRIKKARIYOOR KARA AND VILLAGE, KOTHAMANGALAM TALUK, ERNAKULAM, PIN-686 692, REPRESENTED BY ITS PRESIDENT AND JOINT SECRETARY. BY ADVS. SRI.M.P.RAMNATH SRI.P.RAJESH (KOTTAKKAL) SEI.M.VARGHESE VARGHESE SMT.S.SANDHYA SRI.BEPIN PAUL SRI.SHALU VARGHESE SRI.S.DEEPAK SRI.ANTONY THARIAN SHRI.ARJUN S. SEBASTIAN K.J **THIS OP (CIVIL) HAVING BEEN FINALLY HEARD ON 28.09.2021, ALONG WITH OP(C).1921/2020, THE COURT ON 21.12.2021 DELIVERED THE FOLLOWING:** O.P.(C) Nos.1921 & 1923 of 2020 -5- ## **JUDGMENT** Dated this the 21[st] day of December, 2021 Petitioners are the defendants in O.S.No.45 of 2020 pending on the files of the Munsiff's Court, Kothamangalam. They are aggrieved by the order in I.A.No.5 of 2020 appointing a Receiver to manage the properties and the spiritual and temporal affairs of the Thrikkariyoor Brahmana Samooham and Thrikkariyoor Brahmana Samooha Madhom. The petitioners have also challenged the order in I.A.No.6 of 2020, injuncting them from interfering with the administration and affairs of the Thrikkariyoor Brahmana Samooham and Thrikkariyoor Brahmana Samooha Madhom and its assets. 2. The averments in the suit and the interlocutory applications are to the following effect; The Thrikkariyoor Mahadeva Temple was under ## O.P.(C) Nos.1921 & 1923 of 2020 -6- the administration of Vadakkumkoor Rajas during olden times. The Rajas brought Tamil Brahmins to aid them in the administrative and allied activities of the temple. The Brahmins thus brought down were provided with landed properties and other assets. The members of the Brahmin community congregated into a 'Samooham' and established a Samooha Madhom for carrying out their activities. Earlier, the Samooham had extensive lands in its possession. With efflux of time, the assets got reduced. At present, the assets are confined to plaint A, B and C schedule immovable properties, D schedule movables and E schedule bank deposits and endowments. There are no written bylaws for management of the Samooham, Samooha Madhom or its assets. The customary practice is for a member from the Samooham to take charge as Kizhikaran on the evening of 'Sastha preethi' festival every year and to continue till next year's Sastha O.P.(C) Nos.1921 & 1923 of 2020 -7- preethi. At the time of assuming charge, the Kizhikaran has to make a security deposit known as 'Kizhipanam'. Before handing over charge, the incumbent Kizhikaran has to place the accounts of his period before the members of the Samooham. Before the new Kizhikaran has to place the accounts of his period will be verified and the Kizhipanam returned after deducting the liabilities, if any incurred. The name 'Kizhikaran' was later replaced with the term 'President' and the person assisting the Kizhikaran came to be called 'Secretary'. The first and second petitioners assumed charge of Kizhikaran (President) and assistant (Secretary) in the year 2012, after the Sastha preethi festival held on 14.01.2012. After assuming charge, they committed various acts of misappropriation and even alienated the immovable properties of the Samooham. The immovable property was transferred in the name of the third ## O.P.(C) Nos.1921 & 1923 of 2020 -8- petitioner, who is none other than the wife of the first petitioner, as per Sale Deed No.3714 of 2015 of Kothamangalam SRO. Later, the third petitioner executed Gift Deed bearing No.1811 of 2016 in favour of petitioners 1 and 2, in their alleged capacity as President and Secretary of the Samooham. Under that document, give a new character was attempted to be given to the Thrikkariyoor Brahmana Samooham, by stating it to be under the Kerala Tamil Brahmana Samooham. In spite of objections by the members of the Samooham, the petitioners refused to relinquish power and continued with their illegal activities. Faced with such a situation, the members of Samooham convened a meeting on 05.01.2020 and passed a resolution to take necessary action against the illegal activities of the petitioners. Based on the decision, the members of the Samooham constituted a trust by name 'Thrikkariyoor Brahmana Samooham Trust' and O.P.(C) Nos.1921 & 1923 of 2020 **==> picture [16 x 9] intentionally omitted <==** got the same registered. The trust has its own written bylaws for managing the affairs of the Samooham, Samooha Madhom and its assets. The plaintiffs 1 to 4 in the suit are members of the trust and the 5[th] plaintiff is the trust itself. 3. The petitioners filed written statement stoutly refuting the allegation of misappropriation and explaining the circumstances under which the sale deed and gift deed were executed. According to the petitioners, all their actions were based on the decisions taken by the Samooham. The right of the plaintiffs to file the suit was questioned and it was contended that the attempt is to appropriate the properties of the Samooham and Samooha Madhom. It was contended that the suit filed without arraying the Samooha Madhom (Thrikkariyoor Brahmana Madhom), which is a separate legal entity, as a party, is not maintainable. 4. The trial court, after elaborate ## O.P.(C) Nos.1921 & 1923 of 2020 -10- consideration, allowed the applications and appointed the 4[th] plaintiff as Receiver. The order appointing Receiver and the order granting injunction were challenged in appeal, but without success. Hence, these original petitions. 5. Heard Adv. Alexander Joseph, learned Counsel for the petitioners and Adv.M.P.Ramnath, learned Counsel for the respondents. 6. Apart from factual contentions, which I do not propose to consider in these original petitions filed under Article 227, learned Counsel for the petitioners raised the following legal contentions; **==> picture [381 x 12] intentionally omitted <==** necessary party, namely, the Thrikkariyoor Brahmana Samooha Madhom. (ii) The petitioners being in possession and administration of the Samooha Madhom and its properties, the trial court could not have passed an order of prohibitory injunction. O.P.(C) Nos.1921 & 1923 of 2020 **==> picture [23 x 8] intentionally omitted <==** (iii) The Thrikkariyoor Samooham and Samooha Madhom come under the definition of 'institution' under Section 61(6) of the Travancore-Cochin Hindu Religious Endowments Act, 1950. The court defined under that Act being the District Court, the Munsiff's Court does not have jurisdiction to entertain the suit. (iv) The trial court was not justified in hastily appointing a Receiver for the properties. In any case, appointment of the 4[th] plaintiff as Receiver is illegal, being contrary to Rule 169 of the Civil Rules Practice. **==> picture [381 x 13] intentionally omitted <==** constituted trust and none of the plaintiffs are competent to file the suit representing the members of the Samooham. **==> picture [381 x 12] intentionally omitted <==** highlighted the alleged acts of misfeasance and malfeasance committed by the petitioners, which I am not called upon to consider in these ## O.P.(C) Nos.1921 & 1923 of 2020 -12- proceedings. Answering the contentions regarding non-joinder of necessary party, it is argued that the Thrikkariyoor Samooha Madhom is not a legal entity and is a generic term used for describing the building wherein the spiritual and temporal affairs of the Samooham is conducted. 8. The contention based on the provisions in the Travancore-Cochin Hindu Religious Endowments Act, 1950, is met by referring to the definition of 'Hindu Religious Endowment' in Section 2(b) of Part I and the definition of 'Institution' under Section 61(6) of Part II. It is contended that Rule 169 does not interdict the appointment of the 4[th] plaintiff as Receiver. 9. Indisputably, the Thrikkariyoor Samooha Madhom is an unincorporated body and I find merit in the submission that it is a generic term used to describe the place where the members of the Samooham congregate. The legal position that an ## O.P.(C) Nos.1921 & 1923 of 2020 -13- unincorporated body cannot be considered as a juristic person is no longer _res integra_ . (see _**Corporation of Trivandrum v. K.Narayana Pillai [1968 KLT 285]**_ **and** _**Rev.Noble Gambeeran and others v. Peter P.Ponnan [(1999) 1 MLJ 392]).**_ Being so, the contention that the suit is bad for nonimpleadment of the Thrikkariyoor Samooha Madhom, is unsustainable. 10. The contention that the trial court could not have passed an order of prohibitory injunction, the petitioners being in possession of the properties, cannot also be countenanced. This contention cannot hold good, a Receiver having been appointed for managing the properties and the affairs of the Samooham and Samooha Madhom. 11. It is true that appointment of Receiver is one of the harshest remedies under law. In the instant case, the petitioners are not having O.P.(C) Nos.1921 & 1923 of 2020 -14- ownership or exclusive possession over the properties under their management. The object of appointing Receiver is to preserve the subject matter of the pending litigation. The trial court having appointed Receiver after arriving at the subjective satisfaction that the circumstances warranted such action and the decision of the trial court having been affirmed by the appellate court, this Court cannot interfere with the factual findings and the consequent decisions, in exercise of the jurisdiction under Article 227. 12. As rightly contended by the learned Counsel for the respondents, Rule 169 of the Civil Rules of Practice is not an absolute embargo against appointment of a party to the suit as Receiver. The Rule only stipulates that no party to the suit shall ordinarily be appointed as Receiver, if the income from the income from the property is enough to afford ## O.P.(C) Nos.1921 & 1923 of 2020 -15- payment of remuneration to a receiver. Here, it is doubtful whether the income from the property of the Samooham and Samooha Madhom will be sufficient to meet the remuneration payable to a third party Receiver. Moreover, in the order appointing 4[th] respondent as Receiver, trial court has directed deposit of security amount of Rs.25,000/- and has also deferred fixation of remuneration of the Receiver to a later point of time. As such, I do not find any illegality in the 4[th] respondent being appointed as Receiver. 13. The contention regarding the lack of jurisdiction of the Munsiff's Court is urged based on the definition of the term 'institution' in Section 61(6) of Part II of the Travancore Cochin Hindu Religious Endowment Act. Of course, the definition of 'institution' under Section 61(6) includes Samooham or Samooha Madhom of Paradesi Brahmins also. Further, as per Section 61(2), 'Court' means District Court, within the ## O.P.(C) Nos.1921 & 1923 of 2020 -16- local limits of which the principal temple, shrine, samooham or samooha madhom etc of the institution is situated. The question here is whether the definition of 'institution' under Section 61(6) of Part II is attracted at all. A reading of the Act shows that, Part I extends to Travancore, Part II to Cochin, and Part III the whole of the State, excluding Malabar District. As per Section 2(a) of Part I, 'Board' means the Travancore Devaswom Board constituted under Chapter II of the Act. That the Thrikkariyoor Kshethram is under the Travancore Devaswom Board is not in dispute. If so, the Thrikkariyoor Brahmana Samooham would fall within the definition of 'Hindu Religious Endowment' under Section 2(b) of Part I and not within the definition of 'institution' in Section 61(6) of Part II. Hence, the challenge as to the lack of jurisdiction cannot also be countenanced. 14. The other contention is that the 5[th] O.P.(C) Nos.1921 & 1923 of 2020 **==> picture [23 x 8] intentionally omitted <==** plaintiff is not a duly constituted trust and the other plaintiffs are not competent to represent the members of the Samooham. In this regard, it is pertinent to note that the suit is filed under Order I Rule 8 of CPC. A trust is not a legal person and there is no enabling provision in the Code of Civil Procedure providing for the trust to sue in its name. As such, the question whether the 5[th] plaintiff trust is duly constituted or not is of no avail, as a representative suit under Order I Rule 8 instituted on behalf of an unincorporated body. The plaintiffs having resorted to file such a suit, the objection as to competence is also liable to be repelled. For the aforementioned reasons, the original petitions are dismissed. Sd/- ## **V.G.ARUN JUDGE** Scl/ O.P.(C) Nos.1921 & 1923 of 2020 -18- The last sentence in paragraph 13 of the judgment is deleted, leaving it open for the trial court to decide that question independently, if and when it arises for consideration, as per common order dated 24.05.2022 in R.P.No.275/2022 in OP(C) 1921/2020 and R.P.No.286/2022 in OP(C) 1923/2020. Sd/Joint Registrar. O.P.(C) Nos.1921 & 1923 of 2020 -19- ## **APPENDIX OF OP(C) 1921/2020** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 12.8.2020 PASSED IN I.A.NO.6/2020 IN O.S.NO.55/2020 BY THE MUNSIFF'S COURT, KOTHAMANGALAM. EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 17.11.2020 PASSED IN CMA NO.25/2020 BY THE SUB COURT, MUVATTUPUZHA. O.P.(C) Nos.1921 & 1923 of 2020 -20- ## **APPENDIX OF OP(C) 1923/2020** PETITIONER EXHIBITS |EXHIBIT P1|TRUE COPY OF THE ORDER DATED| |---|---| ||12.08.2020 PASSED IN I.A. NO.5/2020 IN| ||O.S. NO.55/2020 BY THE MUNSIFF'S| ||COURT, KOTHAMANGALAM.| |EXHIBIT P2|TRUE COPY OF THE JUDGMENT DATED| ||17.11.2020 PASSED IN CMA NO. 26/2020| ||BY THE SUB COURT, MUVATTUPUZHA.| |EXHIBIT P3|TRUE COPY OF THE BYE-LAWS OF| ||THRIKKARIYOOR BRAHMANA SAMOOHAM.| |EXHIBIT P4|TRUE COPY OF THE RESOLUTION DATED| ||18/10/1992 OF 'THRIKKARIYOOR BRAHMANA| ||SAMOOHA MADAM.'| |EXHIBIT P5|TRUE COPY OF THE CERTIFICATE OF| ||REGISTRATION DATED 26/09/1997 ISSUED| ||BY THE ASSISTANT COMMISSIONER OF| ||CENTRAL EXCISE AND CUSTOMS| ||MUVATTUPUZHA DIVISION.| |EXHIBIT P6|TRUE COPY OF THE SERVICE TAX RECEIPT| ||DATED 06/08/2003 ISSUED BY THE STATE| ||BANK OF TRAVANCORE MUVATTUPUZHA| ||BRANCH.| |EXHIBIT P7|TRUE COPY OF THE MINUTES OF THE| ||MEETING DATED 08/05/2011 OF| ||'THRIKKARIYOOR BRAHMANA SAMOOHA| ||MADAM.'| |EXHIBIT P8|TRUE COPY OF THE DOCUMENT NO.279/2019| ||DATED 28/12/2019 OF KOTHAMANGALAM SRO.| |EXHIBIT P9|TRUE COPY OF THE PLAINT DATED| ||03/03/2020 IN O.S.NO.55/2020 OF| ||MUNSIFF'S COURT KOTHAMANGALAM.| |EXHIBIT P10|TRUE EXTRACT OF THE PAPER PUBLICATION| ||PUBLISHED IN MANGALAM DAILY DATED| ||02/06/2020.| |EXHIBIT P11|TRUE COPY OF THE RECEIVER APPLICATION,| ||I.A.NO.5/2020 IN O.S.NO.55/2020 OF THE| ||MUNSIFF'S COURT KOTHAMANAGALAM.| |EXHIBIT P12|TRUE COPY OF THE OBJECTION DATED| ||18/06/2020 OF THE 1ST DEFENDANT.| O.P.(C) Nos.1921 & 1923 of 2020 -21- EXHIBIT P13 TRUE COPY OF THE OBJECTION DATED 19/06/2020 OF THE IMPLEADING PETITIONERS TO EXHIBIT P11 APPLICATION. EXHIBIT P14 TRUE COPY OF THE INJUNCTION APPLICATION DATED 03/03/2020 IN IA.NO.6/2020 IN OS.NO.55/2020 OF THE MUNSIFF'S COURT, KOTHAMANGALAM. EXHIBIT P15 TRUE COPY OF THE REPORT DATED 22/12/2020 SUBMITTED TO THE 4TH PLAINTIFF BEFORE THE MUNSIFF'S COURT KOTHAMANGALAM WITHOUT ANNEXURE.